NUMBER 13-16-00614-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE THE COMMITMENT OF SANTOS GOMEZ III
On appeal from the 103rd District Court
of Cameron County, Texas.
OPINION
Before Justices Rodriguez, Benavides, and Longoria
Opinion by Justice Rodriguez
On August 17, 2016, a jury found beyond a reasonable doubt that Santos Gomez
III is a sexually violent predator (SVP). See TEX. HEALTH & SAFETY CODE ANN. §
841.003(a) (West, Westlaw through 2017 1st C.S.). The district court received the jury’s
verdict, adjudged Gomez as an SVP, and civilly committed him for sex-offender treatment
and supervision. By three issues, Gomez contends: (1)–(2) the evidence is legally and
factually insufficient to find that he is an SVP because there was no mental health
diagnosis and, if none was required, there was such an analytical gap in the State’s
expert’s reasoning that a diagnosis recognized by the Diagnostic and Statistical Manual
for Mental Disorders, 5th edition (DSM-V) should have been required; and (3) the trial
court erred in allowing the State’s expert to testify about the Psychopathy Checklist-
Revised (PCL-R) and Gomez’s psychopathic traits because that testimony did not lead
to a mental health diagnosis. We affirm.
I. BACKGROUND
A. Prior Convictions
On May 30, 2008, in Cause No. 04-CR-511-D, a Cameron County District Court
revoked Gomez’s probation and convicted Gomez of five counts of aggravated sexual
assault of a child, see TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2017 1st
C.S.), and one count of indecency with a child (by contact), see id. § 21.11(a)(1) (West,
Westlaw through 2017 1st C.S.), and sentenced him to a ten-year term of imprisonment.
That same day, the same court, in cause No. 07-CR-1945-D, convicted Gomez of two
counts of aggravated sexual assault of a child and sentenced him to a ten-year term of
imprisonment. See id. § 22.021.
B. Civil Commitment Proceeding
On January 14, 2016, the State filed its original petition for civil commitment. See
TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.153 (West, Westlaw through 2017 1st
C.S.). It alleged that Gomez is an SVP and requested that he be committed for treatment
and supervision. See id. § 841.003(a).
1. SVP Law
Under Texas law, a person can be found to be a “sexually violent predator” if the
person: “(1) is a repeat sexually violent offender; and (2) suffers from a behavioral
2
abnormality that makes the person likely to engage in a predatory act of sexual violence.”
Id. A “[b]ehavioral abnormality” is “a congenital or acquired condition that, by affecting a
person’s emotional or volitional capacity, predisposes the person to commit a sexually
violent offense, to the extent that the person becomes a menace to the health and safety
of another person.” Id. § 841.002(2).
2. Gomez’s Testimony
Gomez’s commitment proceeding was tried to a jury. Gomez testified regarding
his prior convictions. He explained that the first six offenses involved his girlfriend’s
twelve-year-old sister and occurred when he was living with his girlfriend’s family.
Gomez agreed that, in his opinion, this sexual contact was consensual. He further
testified that it only happened once, yet acknowledged that, in his voluntary written
statement to police, he had said that it happened on other occasions. The trial court
admitted this statement into evidence. Gomez further acknowledged that he was
convicted of five counts of aggravated sexual assault against this child, offenses that
happened on different dates. The trial court placed Gomez on probation for this
conviction but, as Garcia testified, the court revoked his probation, in part, because he
was alone with his minor daughters, then ages one and two, on several occasions during
his probation. The sexual acts that occurred when he was with his daughters resulted in
his subsequent conviction for sexually assaulting minor children. Although Gomez
denied the acts, he agreed that he told police they occurred, as reflected in his statement
that the court admitted as a trial exhibit. Gomez stated that he had lied to the police
because he was under the influence of drugs and alcohol and he was sleep deprived—
everything was “like a blur” and he would just “say ‘yes’ or ‘no’ to questions so they could
3
stop asking [him] questions.” Gomez also acknowledged his conviction for these
offenses.1
3. The Experts’ Testimony
The State called expert forensic psychologist Stephen Thorne, Ph.D., as a witness.
Gomez presented forensic psychologist and neuropsychologist Antoinette McGarrahan,
Ph.D., to testify in his defense. Both witnesses examined Gomez prior to testifying.
a. General Definitions and Methodologies
Each expert provided the jury with the statutory definition of “behavioral
abnormality” found in chapter 841 of the Texas Health and Safety Code. See id. Each
expert presented similar understandings of the definition’s various components. They
agreed that the methodology employed when conducting behavioral abnormality
evaluations includes reviewing records, conducting a personal interview, performing
psychological and/or actuarial testing, and applying the relevant research to the specific
case. The experts testified that the use of this methodology is the accepted standard in
the field of forensic psychology.
b. PCL-R—a Psychopathic Checklist
Each expert utilized the PCL-R to determine whether Gomez met the criteria as a
psychopath, as required by statute. See id. § 841.023(a). Dr. Thorne defined a
“psychopath” as “somebody who’s thought to be kind of an aggressive, violent narcosis,
1 The trial court in this civil-commitment case took judicial notice that aggravated sexual assault of
a child under section 22.021 of the penal code, and indecency with a child (by contact) under section
21.11(a)(1) of the penal code are sexually violent offenses for the purposes of chapter 841 of the health
and safety code. See TEX. HEALTH & SAFETY CODE ANN. § 841.002(8)(A) (West, Westlaw through 2017 1st
C.S.); TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.021 (West, Westlaw through 2017 1st C.S.).
4
that they are very self-centered, that they use people to their advantage, that they don’t
have empathy or remorse towards other individuals, and that they’re more likely to
engage in wide-ranging antisocial and criminal acts.”
Dr. Thorne scored Gomez as a 23 on this test of twenty items, each rated at a
zero, one, or two. He explained that a score of 23 out of a possible 40 placed Gomez
“in the moderate range of psychopathic traits,” but not with a diagnosis of psychopath. 2
Dr. Thorne testified that Gomez exhibited the following traits: lack of remorse, elevated
self-esteem, impulsiveness, an extensive history of lying, lack of responsibility, and
inability to follow the terms of his mandatory supervision.
According to Dr. McGarrahan, Gomez received her PCL-R score of 12, indicating
that he has a low level of psychopathic characteristics. She explained that she found the
following traits definitely present: lack of remorse or guilt, promiscuous sexual behavior,
and behavior that resulted in the revocation of his probation. Dr. McGarrahan agreed
that, like “[m]ost people,” Gomez had psychopathic characteristics. She agreed with Dr.
Thorne that Gomez does not meet the criteria under the PCL-R to be diagnosed as a
psychopath.
c. Static-99R—Evaluation of Static Risk Factors
The experts testified that each used the Static-99R. They explained that the
Static-99R is an actuarial instrument that assesses someone’s likelihood of engaging in
a certain act in the future. Dr. McGarrahan stated that the Static-99R tests for “ten [static
or unchanging] risk factors that go into sexual violence, engaging in sexual violence in
2 Dr. Thorne explained that he uses 30 or above on the PCL-R as indicative of a psychopath, while
others use 25.
5
the future.” 3 According to Dr. Thorne, he used the Static-99R and its relevant,
researched risk factors to assess Gomez’s likelihood of committing a sexual offense in
the future.
Both experts scored Gomez a 5, which, according to Dr. Thorne, places him in the
moderate-to-high risk range, and, according to Dr. McGarrahan, places him “in the
moderate range of the higher end of moderate for engaging in a sexually violent offense
in the future.” 4 While Dr. McGarrahan believed the Static-99R accurately reflected
Gomez’s risk of reoffending, in her opinion, his score did not change whether or not
Gomez suffers from a behavioral abnormality. 5 Each testifying expert reviewed his or
her scoring sheet with the jury, explaining the scores and the reasons for them.6
d. Other Risk Factors
Both Drs. McGarrahan and Thorne agreed that Gomez has a history of sexual
deviance, which, according to Dr. Thorne, is one of the biggest risk factors that increases
somebody’s risk of future sexual offending. But Dr. McGarrahan testified that she did
3 Dr. McGarrahan identified and explained the relevance of the static risk factors that she evaluated
on this test, including among others: age, living arrangements, non-sexual violence convictions, prior sex
offenses, and acts involving strangers.
4 Dr. Thorne testified that the records contained an earlier Static-99R assessment by another
professional. Gomez also received a positive 5 score from that evaluation.
5 According to Dr. McGarrahan, “someone with a score of 5 is 2.7 times [more] likely to engage in
sexual recidivism” than “your average, or routine, sex offender who scores a 2.” Dr. McGarrahan also
employed the forensic version of the Sexual Risk Assessment, which she described as an instrument that
looks at non-static risk factors. She scored Gomez a 2.16, which, according the Dr. McGarrahan, means
that he is at “a moderate level of need.”
6 Dr. Thorne explained that while the results of the PCL-R and the Static-99R do not say whether
a person suffers from a behavioral abnormality, “[t]hey’re pieces to the puzzle.”
6
not believe that Gomez “would engage in predatory acts of sexual violence” in the future
because “the sexual offenses he has, in [her] opinion, are not predatory in nature.”7
In his assessment of other risks of sexual reoffending, Dr. Thorne testified that he
diagnosed Gomez with pedophilic disorder.8 Dr. McGarrahan testified that she did not
arrive at such a diagnosis. And even if she had diagnosed Gomez with pedophilia, Dr.
McGarrahan agreed that Gomez would still not be likely to engage in a predatory act of
sexual violence because a person can suffer from pedophilic disorder and not suffer from
a behavioral abnormality.
Dr. Thorne also acknowledged that Gomez had previously been diagnosed with
major depressive disorder. According to Dr. Thorne, Gomez had a history of depression,
and a person can become so depressed that it affects their judgment. He explained that,
according to the records, Gomez previously tried to kill himself, which demonstrates an
impulsivity that Dr. Thorne considered relevant.
Dr. Thorne also determined that Gomez “probably meets the criteria for multiple
drug-related diagnoses.” Yet, while listing Gomez’s past substance abuse as a risk
factor for Gomez and agreeing that he would need substance abuse treatment, Dr.
McGarrahan noted that, in her opinion, this risk factor did not predispose Gomez to
commit a predatory act of sexual violence, only sexual violence.
7 Dr. McGarrahan explained that Gomez’s offenses are not included in the definition of “predatory
act” because “those incest offenses[, such as the acts committed against his daughters and his girlfriend’s
sister,] are not typically viewed in the psychology field as being predatory.”
8 According to Dr. Thorne, a pedophilic disorder requires a period of at least six months during
which an adult displays sexual interests, behaviors, or thoughts about pre-pubescent children as those
thirteen years of age or younger. He explained that a pedophilic disorder is a congenital or acquired
condition that would affect Gomez’s emotional or volitional capacity.
7
Finally, Dr. Thorne explained that although he did not diagnose Gomez with
antisocial personality disorder, he did assign Gomez a V-Code condition—not a DMS-V
diagnosis—of adult antisocial behavior. Dr. Thorne described antisocial behaviors as
“[i]llegal behaviors, behaviors that violate the safety or the well-being, the health of other
individuals that are kind of against the traditional [legal and social] norms.”9 According
to Dr. Thorne, antisocial behavior is another of the biggest risk factors for sexually
reoffending. Dr. Thorne testified that Gomez exhibited traits of antisocial behavior,
including being convicted for sex offenses, being convicted for stealing beer from a
convenience store, being detained at the border for purchasing animal tranquilizers, using
a variety of illegal drugs, and having multiple disciplinary cases in prison. Dr.
McGarrahan testified that she also saw some antisocial traits in Gomez, including being
irresponsible in the past, not being completely honest in the past, and having trouble with
the law.10 According to Dr. McGarrahan, she did not, however, feel that Gomez “met the
full criteria for antisocial personality disorder” because such traits must be exhibited prior
to age fifteen and she did not see any indication of such conduct disorder prior to age
fifteen for Gomez.
Other risk factors Dr. Thorne found for Gomez included having a non-familial victim
and reoffending sexually while on probation for a sexually violent offense. 11 Dr.
9 Dr. Thorne agreed that some of the psychopathic traits are similar to those found in someone
with antisocial behavior traits.
10Dr. McGarrahan identified other typical antisocial behaviors, including “talking about harming
other people, engaging in fire setting, cruelty to animals, things that then go on to be indicative of hurting
humans down the road.” She did not testify that Gomez exhibited these behaviors.
11 According to Dr. Thorne, while research suggests that successfully completing sex offender
treatment lowers a person’s risk to reoffend sexually, persistence after punishment is a risk factor with
“significantly higher levels of sexual recidivism.” Gomez was court-ordered into sex offender treatment as
8
McGarrahan also found, as a risk factor, that Gomez was offending after punishment and
while on probation.
e. Protective or Mitigating Factors
In addition, the experts testified about protective or mitigating factors that lower a
person’s risk for sexual reoffending. Dr. McGarrahan testified that Gomez does not have
any protective factors that would reduce his risk of reoffending, while Dr. Thorne
summarized the following protective factors he found for Gomez: he is not a psychopath,
he has no stranger victims, and he has no male victims. Good social support is
theoretically a protective factor, but Dr. Thorne did not believe this was so for Gomez
because he enjoyed a good support system at the times he committed his sexual
offenses. Finally, it is undisputed that Gomez was, at the time of trial, in the early stages
of a nine-month sex-offender-treatment program through the Texas Department of
Criminal Justice. Dr. Thorne testified that Gomez had talked about all of his offenses in
treatment, but had not admitted to all of them, so Gomez’s treatment was not yet a
protective factor.
f. The Experts’ Opinions
Both experts evaluated Gomez and offered opinions as to whether Gomez suffers
from a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. See id. For the State, Dr. Thorne opined that Gomez does suffer from such
a behavioral abnormality. See id. For the defense, Dr. McGarrahan testified that
part of his original probation, and he testified that he learned relapse prevention and reported that he
successfully completed an eighteen-month program. Yet, as Dr. Thorne noted, Gomez reoffended after
treatment. Dr. Thorne identified reoffending against new sexual victims while on probation is another big
risk factor.
9
Gomez does not. See id. Importantly, neither expert assigned a specific mental health
diagnosis to Gomez in arriving at their respective opinions.
4. Final Judgment and Order of Commitment
On August 17, 2016, after the parties rested, the trial court directed a partial verdict
that Gomez is a repeat sexually violent offender, the first element required for
commitment under the SVP statute. 12 See id. § 841.003(a). The jury returned a
unanimous verdict finding that Gomez is a sexually violent predator, thereby, implicitly
finding the remaining required element—that he suffers from a behavioral abnormality
that makes him likely to engage in a predatory act of sexual violence. See id.
§ 841.002(2). The trial court entered a final judgment reflecting the jury’s verdict and
ordered that Gomez be civilly committed. After the trial court denied his motion for new
trial, Gomez filed this appeal.
II. LEGAL SUFFICIENCY OF THE EVIDENCE13
By his first issue, Gomez challenges the legal sufficiency of the evidence to support
the jury’s conclusion that he is an SVP—that he suffers from a behavioral abnormality
that makes him likely to engage in a predatory act of sexual violence. He contends the
12 Gomez does not challenge this ruling on appeal.
13 Gomez also challenges the factual sufficiency of the evidence in his second issue. But to
preserve this issue for appeal, a complaint challenging the factual sufficiency of the evidence to support a
jury finding in a civil case, must be urged in a motion for new trial, see TEX. R. CIV. P. 324(b), and ruled on
by the trial court. See TEX. R. APP. P. 33.1(a); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991) (“A point
in a motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to
support a jury finding . . . .”); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149
(Tex. App.—Corpus Christi 1996, no writ) (same); see also In re Commitment of Day, 342 S.W.3d 193,
206–17, (Tex. App.—Beaumont 2011, pet. denied) (reviewing a civil commitment case for factual
sufficiency where a motion for new trial concerning factual sufficiency). Because Gomez did not raise
factual sufficiency in his motion for new trial, he did not preserve this factual-sufficiency issue for appellate
review. We overrule Gomez’s second issue.
10
evidence is legally insufficient because, to establish a “behavioral abnormality,” the State
must show that Gomez was diagnosed with a mental health condition recognized by the
DSM-V, and there was no such diagnosis here. In the alternative, Gomez asserts that
even if we conclude that such a DSM-V recognized diagnosis is not necessary, the
evidence is legally insufficient because “[t]here is simply too great an analytical gap
between” the State expert’s diagnosis of a V-Code condition—adult antisocial disorder—
and the ultimate conclusion that Gomez suffers from a behavioral abnormality. See
Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 727 (Tex. 1998) (providing that a
court may reject an expert’s testimony when “there is simply too great an analytical gap
between the data and the opinion proffered”).
The State responds that its expert’s use of a V-Code condition to note that Gomez
has antisocial personality traits does not render his opinion legally insufficient. The State
reasons that the evidence is sufficient because the SVP statute does not require a mental
health diagnosis as a prerequisite to commitment, case law supports civil commitment
without a mental health diagnosis, and the standard methodology used by evaluators
does not include making diagnoses. The State asserts that when all of the evidence is
viewed in a light most favorable to the verdict, the evidence is legally sufficient to support
the verdict, and there is no analytical gap.
A. Standard of Review
In SVP cases, the State must prove the elements of its case beyond a reasonable
doubt. See id. § 841.062(a). Because the statute places upon the State the burden of
proof employed in criminal law, we adopt the appellate standard of review in criminal
cases for legal sufficiency of the evidence, as did the Beaumont Court of Appeals in In re
11
Commitment of Mullens. See 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.
denied) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In a legal sufficiency review, this Court reviews all of the evidence in a light most
favorable to the verdict to determine whether any rational trier of fact could find, beyond
a reasonable doubt, the elements required for commitment under the SVP statute. Id.;
see In re Commitment of Anderson, 392 S.W.3d 878, 881 (Tex. App.—Beaumont 2013,
pet. denied); see also TEX. HEALTH & SAFETY CODE ANN. § 841.003(a).
B. Discussion
1. No Mental Health Diagnosis Is Required in a Behavioral Abnormality
Evaluation
Neither expert included making a mental health diagnosis as part of the standard
methodology employed in behavioral abnormality evaluations. Both experts testified,
and we agree that there is no statutory requirement of a mental health diagnosis to civilly
commit a person as an SVP; chapter 841 reveals no requirement of a diagnosis. See
TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.153.
Rather, section 841.023(a) of the SVP statute provides the only statutory directive
to an examining expert: “[t]he expert shall make a clinical assessment based on testing
for psychopathy, a clinical interview, and other appropriate assessment and techniques
to aid the department in its assessment.” Id. § 841.023(a).
The Texas Legislature enacted the SVP statute in 1999 after the United States
Supreme Court decided Kansas v. Hendricks. See 521 U.S. 346, 356–59 (1997)
(considering the Kansas equivalent to the Texas SVP statute and dismissing the
argument that a finding of a mental illness was a prerequisite to commitment). The
12
Hendricks Court ultimately determined that legal definitions “need not mirror those
advanced by the medical profession” and concluded that Hendricks’s pedophilia
diagnosis qualified as his mental abnormality. Id.
The legislature made major revisions to the SVP statute in 2015,14 after the Texas
Supreme Court decision in In re Commitment of Bohannan.15 388 S.W.3d 296, 306 (Tex.
2012) (“A medical diagnosis of a person’s mental health may certainly inform an
assessment of whether he has an SVP’s behavioral abnormality, but the principal issue
in a commitment proceeding is not a person’s mental health, but whether he is
predisposed to sexually violent conduct.”); see also In re Commitment of Pickens, No. 09-
14-00391-CV, 2016 WL 821426, at *2 (Tex. App.—Beaumont Mar. 3, 2016, pet. denied)
(mem. op.) (“A diagnosis of a mental disorder is not a prerequisite for civil commitment.”)
(citing In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852, at *2 (Tex.
App.—Beaumont June 26, 2014, pet. denied) (mem. op.), cert. denied, 135 S.Ct. 1747
(2015) (holding that the expert “was not required to make any mental diagnosis”)). 16 But
the 2015 revisions made no changes to the definitions of “behavioral abnormality” or
14 Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas Health and Safety
Code in several respects. See Act of May 21, 2015 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv.
2701, 2701–12.
15 At issue in In re Commitment of Bohannan was the exclusion of expert testimony because the
expert was neither a psychologist nor a psychiatrist. 388 S.W.3d 296, 302 (Tex. 2012). The Bohannan
Court considered what had to be proven in a civil commitment proceeding and who could prove it. See id.
at 302–06.
16 Because the Beaumont Court’s decisions are not binding on this Court, Gomez asks us to
consider on our own whether a mental health diagnosis is required. We do consider on our own whether
such a mental health diagnosis is required; however, the Beaumont Court opinions are well reasoned and
provide guidance for this Court. See Thomas v. Cook, 350 S.W.3d 382, 395 n.2 (Tex. App.—Houston
[14th Dist.] 2011, pet denied); see also Garza v. Deleon, No. 13-13-00342-CV, 2013 WL 6730177, at *5
(Tex. App.—Corpus Christi Dec. 19, 2013, no pet.) (mem. op.).
13
“SVP.” See TEX. HEALTH & SAFETY CODE ANN. §§ 841.002(2), (9); 841.003(a). The
revisions did not add a requirement of a formal diagnosis. When the legislature meets
after a particular statute has been judicially construed, as in this case, and does not
change the statute, the courts presume that the legislature agreed with the construction.
See Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000) (on reh’g en banc) (“When
a statute is reenacted without material change, it is generally presumed that the
legislature knew and adopted or approved the interpretation placed on the original act,
and intended that the new enactment should receive the same construction as the old
one.”); see also Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex.
2000) (“It is a firmly established statutory construction rule that once appellate courts
construe a statute and the Legislature re-enacts or codifies that statute without substantial
change, we presume that the Legislature has adopted the judicial interpretation.”).
Our review of the SVP statute reveals no requirement of a mental health diagnosis.
The courts have interpreted the SVP statute to require no formal diagnosis, with no
legislative changes after such interpretation. The experts in this case acknowledged that
a diagnosis is not included in the methodology. Likewise, we conclude that the absence
of a formal diagnosis is not fatal to this sufficiency review.
2. Dr. Thorne’s Opinion Was the Result of Reasoned Judgment; There
Was No Analytical Gap
Alternatively, Gomez asserts that, should we decide that a diagnosis is not
required, at least in this case, there should be an exception to not requiring a diagnosis.
See Bohannan, 388 S.W. at 303. Gomez argues that, here, there is no question that the
DSM-V does not recognize someone as having a diagnosis of adult antisocial behavior.
14
But because the State’s expert used a V-Code condition to help prove “behavioral
abnormality,” he should be required to do so through an actual DSM-V recognized
diagnosis.17 Gomez asserts that there is simply too great an analytical gap between the
identification or diagnosis of a V-Code condition and the conclusion that Gomez’s suffers
from a behavioral abnormality. See Gammill, 972 S.W.2d at 727 (discussing whether
“there is simply too great an analytical gap between the data and the [expert’s] opinion
offered”). Without an actual DSM-V recognized diagnosis, Gomez asserts that the
evidence is legally insufficient to support a jury’s conclusion that Gomez suffers from a
behavioral abnormality. In this case, we disagree.
Gomez’s arguments have been rejected in other courts. The Beaumont Court of
Appeals found that an expert used “reasoned judgment based upon established research
and techniques for his profession” when the expert reviewed historical records of the
person’s behaviors, personally interviewed the person, and employed the actuarial tools
that are recognized and utilized in his profession to determine conditions and evaluate
levels of risk. See In re Commitment of Day, 342 S.W.3d 193, 204 (Tex. App.—
Beaumont 2011, pet. denied). In other SVP cases, the courts have determined that the
expert used reasoned judgment based upon established research and techniques for his
profession when the expert reviewed the records and interviewed the person, was
licensed in the expert’s field, conducted the evaluation in accordance with the accepted
standards of the expert’s field, and explained how he used the records to reach his
opinions. See In re Commitment of Dodson, 434 S.W.3d 742, 750 (Tex. App.—
17 Gomez does not identify the DSM-V recognized diagnoses that he claims the State’s expert
should have used.
15
Beaumont 2014, pet. denied); see also In re Commitment of Kalati, 370 S.W.3d 435, 438–
39 (Tex. App.—Beaumont 2012, pet. denied).
In this case, the State’s expert was licensed in his field and followed the standard
accepted practices in conducting his evaluation of Gomez. Dr. Thorne testified that he
reviewed the types of records standard for these evaluations and explained how he used
the records to arrive at his opinion.18 He used instruments accepted by his profession
for these types of evaluations. According to Dr. Thorne, he assessed risk and named
risk factors for Gomez, finding that the following were Gomez’s greatest risk factors:
[H]e has a documented history of sexual deviancy with three separate child
victims, and . . . after pleading guilty to the initial sexual offenses and
receiving a probation sentence, he reoffended against two new sexual
victims while on probation. And even outside of those offenses, there is
some evidence in the records of additional sexually deviant behavior and
additional antisocial behavior.
Dr. Thorne agreed that, in his expert opinion, Gomez suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
We cannot conclude that there was too great an analytical gap between his
methodology, his reasoning, and the opinion he offered. See Gammill, 972 S.W.2d at
727; see also TEX. R. EVID. 702. Instead, we conclude that Dr. Thorne’s opinion was
reasoned and based upon established research and techniques for his profession. See
Day, 342 S.W.3d at 204; Dodson, 434 S.W.3d at 750; Kalati, 370 S.W.3d at 438–39.
18 We note that Dr. Thorne originally said he “diagnosed [Gomez] with something called adult
antisocial behavior, which is something we call a ‘V-Code.’” Thorne later clarified that a “V-Code” is not
the same as a diagnosis, “it’s listed as a condition in the DSM.”
We cannot conclude that Dr. Thorne’s testimony misled the jury. It was free to discount Dr.
Thorne’s opinion if they felt that his methodology and the bases for his opinion, including the V-Code
condition of adult antisocial behavior, were not sufficient to support the expert’s opinion. See City of Keller
v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“Jurors are the sole judges of the credibility of the witnesses
and the weight to give their testimony.”). This Court cannot impose its opinions to the contrary. Id.
16
Moreover, our review of the evidence set out above supports the jury’s verdict. It
was entitled to draw reasonable inferences from basic facts to determine ultimate fact
issues. See Anderson, 392 S.W.3d at 882. The jury was entitled to resolve conflicts
and contradictions in the evidence by believing all, part, or none of a witness’s testimony.
See id.; City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
Considering all the evidence in the light most favorable to the verdict, we conclude
that a rational jury could have found beyond a reasonable doubt that Gomez suffers from
a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. See Mullens, 92 S.W.3d at 885. So the evidence is legally sufficient to
support Gomez’s civil commitment as an SVP.
C. Summary
We have rejected each of Gomez’s arguments in support of his first issue, and we
have instead concluded that: no diagnosis was required; there was no analytical gap
between Dr. Thorne’s methodology, his reasoned judgment, and his proffered opinion
such that an exception, if any, to the no-diagnosis requirement applied; and the evidence
was legally sufficient to support Gomez’s civil commitment. We overrule Gomez’s first
issue.
III. ADMISSION OF TESTIMONY REGARDING THE PSYCHOPATHY CHECKLIST (PCL-R)
AND GOMEZ’S PSYCHOPATHIC TRAITS
By his third issue, Gomez contends the trial court abused its discretion when it
admitted Dr. Thorne’s testimony about the PCL-R because it did not lead to a diagnosis.
He also complains that the trial court abused its discretion when it admitted Dr. Thorne’s
testimony about Gomez’s psychopathic traits because it did not lead to a diagnosis and
17
because it was irrelevant in determining whether Gomez suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence. See
TEX. R. EVID. 401 (providing that evidence is relevant if: (1) it has any tendency to make
a fact more or less probable than it would be without the evidence; and (2) the fact is of
consequence in determining the action). The State responds that to the extent Gomez
preserved the issue, the trial court did not abuse its discretion because it was guided by
the rules of evidence and the SVP statute when it allowed the State’s expert to testify
about testing Gomez for psychopathy and the traits he believed Gomez exhibited. We
agree with the State.
A. Standard of Review
We review evidentiary rulings for an abuse of discretion. Bay Area Healthcare
Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam); City of Brownsville
v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when
it acts without regard for guiding rules or principles. Owens–Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998).
B. Discussion
Dr. Thorne testified that the second edition of the PCL-R is an instrument typically
scored by forensic psychologists performing behavioral abnormality evaluations. He
explained that the test does not determine whether a person has a behavioral
abnormality. But, Dr. Thorne further explained that the SVP statute requires the person
be tested for psychopathy and that the PCL-R is “an instrument that’s commonly used in
forensic cases to determine whether or not somebody meets the criteria as a
psychopath.” See TEX. HEALTH & SAFETY CODE ANN. § 841.023(a). At trial, over
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Gomez’s objection, the State moved to display the PCL-R checklist. After being
informed that the PCL-R results were a part of Dr. Thorne’s report, the trial court admitted
it.
In sum, Dr. Thorne testified that, with a range of 0 to 40, Gomez’s score of 23 on
the PCL-R “places him in the moderate range of psychopathic traits.” Dr. Thorne testified
that he did not believe that Gomez is a true psychopath but that Gomez does have some
psychopathic traits. Additionally, Gomez’s expert, Dr. McGarrahan, testified that she
utilized the same instrument, scored Gomez as a 12, and identified certain psychopathic
traits she saw in Gomez. Dr. McGarrahan also referred to the PCL-R as “the gold
standard in our field for looking at whether somebody’s a psychopath.”
We find nothing objectionable in this testimony. Instead, the rules of evidence
allow it, and the SVP statute requires it. Drs. Thorne and McGarrahan testified about
their use of the PCL-R and the results of Gomez’s PCL-R testing for psychopathy. The
SVP statute requires that the expert’s evaluation include testing for psychopathy: “[t]he
expert shall make a clinical assessment based on testing for psychopathy, a clinical
interview, and other appropriate assessment and techniques to aid the department in its
assessment.” Id. And the rules of evidence provide for the disclosure at trial of the
bases of an expert’s opinion. TEX. R. EVID. 705 (providing for the disclosure of the
underlying facts or data and the examination of an expert about them). Because the trial
court followed the rules of evidence and the SVP statute’s requirements, we cannot
conclude that the PCL-R testing was not relevant as Gomez asserts or that the trial court
abused its discretion in admitting testimony concerning the PCL-R and Gomez’s
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psychopathic traits.19 See id. R. 401, 705; TEX. HEALTH & SAFETY CODE ANN. 841.023(a);
Bay Area Healthcare, 239 S.W.3d at 234; Owens–Corning Fiberglas Corp., 972 S.W.2d
at 43; Alvarado, 897 S.W.2d at 753. We overrule Gomez’s third issue.
IV. CONCLUSION
We affirm the trial court’s judgment of civil commitment.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 14th
day of December, 2017.
19 We assume without deciding that Gomez preserved his relevancy argument for appeal.
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